Infant. An infant is not liable in an alleged action of tort for false and fraudulent representations that he was of age whereby the plaintiff was induced to pay him a sum of money for an option in writing to purchase real estate owned by the infant which afterwards he repudiated on the ground of infancy.
One who has paid money to an infant under a contract which the infant afterwards avoids on the ground of infancy cannot recover back the amount of the money he has paid where the infant has not retained the identical money in his hands.
LATHROP, J.
We are of opinion in this case that the demurrer to the declaration was rightly sustained, and judgment rightly ordered for the defendant. While the action is called one of tort, yet the action is clearly for the breach of a contract, and the fraud alleged is directly connected with the contract. The case is governed by Slayton v. Barry, 175 Mass. 513, where the question is fully considered, and the rule laid down by Chancellor Kent followed. "The fraudulent act, to charge him, [the infant] must be wholly tortious; and a matter arising ex contractu, though infected with fraud, cannot be changed into a tort in order to charge the infant in trover, or case, by a change in the form of the action." 2 Kent Com. 241.
The case of Drude v. Curtis, 183 Mass. 317, disposes of the argument that the plaintiff may recover as damages the sum paid by him for the option. It also disposes of the case of Walker v. Davis, 1 Gray, 506, relied upon by the plaintiff.
Judgment affirmed.